Government by Judiciary

11. "Due Process of Law "

Judiciary_201-250.indd 21 5/7/11 1:08 PM 11 "Due Process ofLaw" nor shall any State deprive any person oflife, liberty, or property, without due process of law L this day," Arthur Sutherland wrote in 1965, "no one knows precisely what the words 'due process of law' meant to the draftsmen of the fifth amendment, and no one knows what these words meant to the draftsmen of the fourteenth amendment."1 True it is that after the 188os the phrase was transformed by the Court into one of "convenient vagueness ";2 and such "vagueness" has become the reigning orthodoxy.3 Whether one can determine "precisely" what due process meant, howr . "Privacy in Connecticut," 64 Mich. L. Rev. 283, 286 (I965). 2. Felix Frankfurter, Mr. Justice Holmes and the Supreme Court 7 (I938): "phrases like 'due process of law' are, as an able judge [Charles M. Hough] once expressed it, of 'convenient vagueness.' Their ambiguity is such that the Court is compelled to put meaning in the Constitution." Earlier Frankfurter asked," 'Convenient' for whom or to what end?" Frankfurter, "The Red Terror ofJudicial Reform" 40 New Republic IIO, I I 3 (I924), reprinted in F. Frankfurter, Law and Politics 10, I4 (I938). But as Justice Frankfurter, he declared in I949 that "Great concepts like . . . 'due process oflaw' ... were purposely left to gather meaning ftom experience. For they relate to the whole domain of social and economic fact." National Ins. Co. v. Tidewater Co., 337 U.S. 582, 646 (I949), dissenting opinion. Compare with Chapter I4 infta at notes 40-43. For the halting, post- Civil War development of substantive due process see Walton H. Hamilton, "The Path of Due Process of Law" in The Constitution Reconsidered I67 (C. Read ed. I938); see also Justice Black, infta note 47. 3· "Due process of law" is among the terms that "doubtless were designed to have the chameleon capacity to change their color with changing moods and circumstances." Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court viii (I96I). So too, Leonard Levy stated that due process and equal protection are "purposely protean or undefined words." Against the Law 27. 22I Judiciary_201-250.indd 22 5/7/11 1:08 PM 222 GOVERNMENT BY JUDICIARY ever, is not nearly so important as the fact that one thing quite plainly it did not mean, in either I789 or I866; it did not comprehend judicial power to override legislation on substantive or policy grounds. There is first the unmistakable testimony of Alexander Hamilton. Speaking in the New York Assembly in I787, almost on the eve of the Convention, he stated: The words "due process" have a precise technical import, and are only applicable to the process and proceedings of the courts of justice ; they can never be referred to an act ofthe legislature.4 No statement to the contrary will be found in any of the constitutional conventions, in the First Congress, nor in the I866 debates. Hamilton summed up the English and colonial usage, and it is that usage that defines the content of the words "due process of law." It has long been a canon of construction that when the draftsmen employed common law terms, the common law "definitions," asJustice Storystated, "are necessarily included as much as ifthey stood in the text" ofthe Constitution .5 But when so great a master as Judge Learned Hand concludes that the prohibitions of the Fifth and Fourteenth Amendments are cast 4·4 The Papers ofAlexande1· Hamilton 35 (H. C. Syrett and]. E. Cooke eds. 1962) (emphasis added); quoted more fully infra note rI. When Coke asserted in Dr. Bonham's Case that an Act of Parliament could not make a man judge in his own cause, he did not invoke Magna Charta but "common right and reason," Berger, Congress v. The Supreme Court 349, which he had identified with the "law ofnature," id. 352, 355 note 31, an identification repeated byJustice Hoban, id. 364. By negative implication, the "law of the land" clause of Magna Charta did not, in Coke's eyes, confer authority to set a statute aside as unreasonable. True, Coke also stated in his Institutes that if any statute be made contrary to "Magna Charta it shall be holden for none," id. 358 note 43, but this, in my judgment, merely meant, for example, that a statute which authorized the "imprisonment" ofa person without the judgment of his peers would be invalid; for he regarded Magna Charta as "fundamental law," id...